David Nkoana vs. Capricorn Voice

SUMMARY

The headline to the story in dispute read, Council suspends muni manager (published on 17 – 19 April 2013).

This ruling by the Adjudication Panel was based on the Press Code that was in effect before 30 September 2022.

 

The story said that the Molemole Municipality (MM) council had suspended David Nkoana, its municipal manager. There reportedly were allegations of financial mismanagement involving multi-million-rand tenders, security and road projects and the failure to comply with the Municipal Finance Management Act.

Nkoana complained that the following sentences were inaccurate/false:

• “He also failed to explain how the contractor could tar the first phase of the project if they were not contracted by the municipality”;
• “Prior to his suspension, Nkoana came under fire from the DA after the opposition party blew the whistle, accusing him of overpaying Marumo Fase Security Services R3 million for services rendered, while the company was initially appointed on a R7 million budget”;
• “The Madikana Matipane contractor was appointed at R11 million, but Nkoana later requested the council to add an additional R2 million”; and
• “Since his arrival at the municipality, all he did was (to) suspend officials and managers for irrelevant reasons. We had one of the best CFO’s (sic) in the country in Mamare Makgaba who was victimised for not taking any nonsense from those who wanted to abuse municipal financial policies, including the municipal manager”.

He also said that the reporter did not contact him for comment, nor did he try to corroborate his information that he had received from anonymous sources.

The Adjudication Panel upheld the bulk of the complaint, saying they believed that the story had caused Nkoana some serious, unnecessary harm. “However, we also expressed our conviction that [the reporter] was not politically influenced – accepting that the breaches of the Code …  were not done with malicious intent or with some ulterior motive.”

Capricorn Voice was directed to apologise to Nkoana for:

• publishing the allegation that Makgaba was “victimised”, without asking for his comment on this matter;
• reporting the DA’s accusation of overpaying Marumo Fase Security Services R3 million for services rendered, while the company was initially appointed on a R7 million budget without asking for comment on this issue; and
• stating as fact that he failed to explain how the contractor could tar the first phase of the project if they were not contracted by the municipality.

The newspaper was also reprimanded for not stating that it could not get comment from Nkoana prior to publication.

The complaint about an additional amount of R2-million was dismissed.

 

THE RULING ITSELF

This ruling is based on the written submissions of Mr David Nkoana, suspended municipal manager of the Molemole Municipality (MM), and the Capricorn Voice newspaper, as well as on a hearing that was held on 20 June 2013 in Johannesburg. Nkoana represented himself and the editor, Stephen Mbedzi, the newspaper. The two members of the Panel of Adjudicators who assisted me were Fanie Groenewald (press representative) and Philip van der Merwe (public representative).

Complaint

Mr David Nkoana complains about a page 3 story in Capricorn Voice on 17 – 19 April 2013, headlined Council suspends muni manager.

Nkoana complains that the following sentences were inaccurate/false:

• “He also failed to explain how the contractor could tar the first phase of the project if they were not contracted by the municipality”;
• “Prior to his suspension, Nkoana came under fire from the DA after the opposition party blew the whistle, accusing him of overpaying Marumo Fase Security Services R3 million for services rendered, while the company was initially appointed on a R7 million budget”;
• “The Madikana Matipane contractor was appointed at R11 million, but Nkoana later requested the council to add an additional R2 million”; and
• “Since his arrival at the municipality, all he did was (to) suspend officials and managers for irrelevant reasons. We had one of the best CFO’s (sic) in the country in Mamare Makgaba who was victimised for not taking any nonsense from those who wanted to abuse municipal financial policies, including the municipal manager”.

He also says that the reporter did not contact him for comment, nor did he try to corroborate his information that he received from anonymous sources.

Analysis

The story, written by Stephen Mbedzi, said that the Molemole Municipality council had suspended Nkoana. The editor added: “Matters leading up to the council’s resolution to suspend Nkoana include allegations of financial mismanagement involving multi-million tenders, security and road projects and the failure to comply with the Municipal Finance Management Act.”

Failing to explain

The sentence in dispute said: “He also failed to explain how the contractor could tar the first phase of the project if they were not contracted by the municipality.” Earlier in the story, Mbedzi wrote that the MM had lost a high court case for breach of the road project’s second phase.

Nkoana complains that the first phase was never in dispute, only the second phase. He adds: “Had the reporter bothered to contact me for my side of the story, he would not have misled the readers with such a false and inaccurate statement.”

The newspaper denies that the dispute was about the “second phase”. Mbedzi says that his story was about the contract which Nkoana commented on in his first story published in 2011. The reporter says that Nkoana told him that the municipality did not have a contract with a specific company.  He said that he put the question to Nkoana, asking how the contractor could do the first phase of the project if they were not legally contracted.

At the hearing, Nkoana explained that phase 1 of the project had been applied for, it had been approved and advertised, and a contractor had been appointed. After the hearing, Nkoana provided the panel with a certificate of completion of the works, dated 5 August 2010, addressed to Matebele Dinare Building Construction.

At the hearing, it became clear to the panel that Mbedzi, in the story, did not properly distinguish between the two phases of the project – hence the rather confusing statement in the story (that Nkoana complains about).

Overpaying R3 million

Nkoana complains about the following sentence: “Prior to his suspension, Nkoana came under fire from the DA after the opposition party blew the whistle, accusing him of overpaying Marumo Fase Security Services R3 million for services rendered, while the company was initially appointed on a R7 million budget.”

He says that Marumo Fase was appointed for a three year period (from 2012 – 2015) at a cost of R10 579 161.98 “which is provided for in the municipality’s multi-year budget”. He argues that it was therefore misleading to report that the company was appointed on a R7 million budget.

Mbedzi responds that the story clearly stated that Nkoana came under fire – not from him or the newspaper, but from the DA (an official opposition in his municipality), who accused him of wrong-doing.

He also points this office to the following sentences in the story of 6 – 8 March 2013 that stated: “The municipality has also, through Nkoana, admitted to being investigated on alleged irregularities following the appointment of Marumo Fase Security at a cost of R10 million, while the council had approved R7 million for security. However, Nkoana could not provide further details, saying: ‘We are not at liberty to comment on the matter and are waiting for the public protector to release her preliminary report for our comments’.”

The journalist says that Nkoana provided him with the figures that he reported in the 6 – 8 March story. He also states that he had published Nkoana’s denial of over-payments of the two service providers as well as his statement that his request for an additional R2 million was justifiable.

The panel asked Nkoana to provide it with documentation to substantiate his argument. He did exactly that. In a letter addressed to the director/manager of Marumofase Security, dated 20 January 2012, he confirmed (as the then municipal manager) that the MM had appointed the company to take care of security. Point 7 of this letter of appointment stated that Marumofase would get R10 578 161.98 for a fixed term of three years.

However, the panel notes that the story did not state the amount of R7-million as fact, but presented it as the DA’s opinion. Mbedzi was justified in reporting this accusation by the DA – but then he had to get comment from Nkoana on this matter as well. It was not fair to Nkoana to report this accusation without giving him a chance to voice his opinion on this matter.

We deal with Mbedzi’s neglect to ask Nkoana for comment in more detail lower down.

Requesting R2 million more

The disputed sentence read: “The Madikana Matipane contractor was appointed at R11 million, but Nkoana later requested the council to add an additional R2 million.” Immediately after this sentence, Mbedzi did record Nkoana’s rejection of this allegation.

He complains that Mbedzi earlier wrote (6 March 2013) his response, which indicated that the contractor was appointed at a cost of R13.5 million; expenditure to date has been R10.9 million. He argues that this demonstrated that the reporter was part of a malicious campaign to portray him as being susceptible to fraud and corruption.

The reporter points out that the story did not state the R2 million as fact, but presented it as an allegation.

The panel noted that Mbedzi indeed presented the sentence in question as an allegation, and that he then recorded Nkoana’s views on this matter. These two considerations justified Mbedzi’s reportage on this matter.

Suspending people for irrelevant reasons

The story quoted an anonymous source as saying: “ ‘Since his arrival at the municipality, all he did was suspend officials and managers for irrelevant reasons. We had one of the best CFO’s (sic) in the country in Mamare Makgaba who was victimised for not taking any nonsense from those who wanted to abuse municipal financial policies, including the municipal manager,’ says the source who asked not to be named for fear of reprisal’.”

Nkoana says that Makgaba in fact resigned in the middle of a disciplinary hearing (he says that she had been charged with eight accounts of financial misconduct). He questions the veracity of the statement that she was one of the best CFOs in the country because MM had received two negative audit reports during her tenure at the municipality.

Mbedzi asks if he was supposed to change the quote to suit Nkoana.

At the hearing, the panel noted that a newspaper cannot publish an allegation merely because someone said something – the repetition of defamation is also defamation. In this case, we felt that the use of the word “victimised” was damning to Nkoana to such an extent that Mbedzi would have only have been justified to use it if he had asked Nkoana for his comment. Failing to do so, he should have refrained from using that word.

Not contacted; no corroboration

Nkoana complains that the reporter did not contact him for comment, nor did he try to corroborate his information that he received from anonymous sources.

Mbedzi says that he did try to telephonically contact Nkoana on several occasions.

The panel asked the editor for records of his attempt(s) to call Nkoana.

0n June 26, general manager of the Northern Media Group (Limpopo) JJ Cilliers wrote in a memorandum that the Northern Telecom technician told him that outgoing calls were only recorded after approximately 20 seconds. “This was the reason why certain dialled numbers did not appear on the printouts previously,” he explained.

This leaves the panel with no evidence that Mbedzi did try to phone Nkoana prior to publication – and therefore no solid ground to make a responsible decision either way.

However, even if the panel gives Mbedzi the benefit of the doubt, he should have stated in the story that he tried to contact Nkoana – which he neglected to do.

Finding

Failing to explain

The sentence in dispute is in breach of Section 2.1 of the Press Code that states: “The press shall take care to report news…accurately…”

Overpaying R3 million

The sentence in dispute may have been accurate in the sense that it truthfully portrayed the DA’s opinion on this matter, but the neglect to get Nkoana’s comment on this accusation amounted to unfair reporting.

This is in breach of the following clauses of the Press Code:

• Section 2.1: “The press shall take care to report news…fairly”; and
• Section 2.5: “A publication shall seek the views of the subject of critical reportage in advance of publication…”

Requesting R2 million more

This part of the complaint is dismissed.

Suspending people for irrelevant reasons

The word “victimised” would only have been justified if the editor obtained comment from Nkoana on this issue. The use of this word is in breach of Section 4.2 of the Code that states: “The press shall exercise care and consideration in matters involving dignity and reputation.”

Because Nkoana was not asked for comment, the story was also in breach of Section. 4.2.4 which states that the dignity or reputation of an individual should be overridden only if “it was reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct…” (read: asked for comment).

Not contacted; no corroboration

The panel has no grounds to make a decision regarding the question if Mbedzi tried to contact Nkoana for comment prior to publication.

However, if he did try to contact Nkoana, he should have mentioned this in the story. His neglect to do so is in breach of Section 2.5 of the Press Code that says: “…If the publication is unable to obtain such comment, this shall be stated in the report.”

General comment

The panel believes that the breaches of the Press Code, as indicated above, caused Nkoana some serious, unnecessary harm. However, we also expressed our conviction that Mbedzi was not politically influenced – accepting that the breaches of the Code as outlined above were not done with malicious intent or with some ulterior motive.

Sanction

Because of the unnecessary harm that the newspaper has caused Nkoana, Capricorn Voice is directed to apologise to him for:

• publishing the allegation that Ms Mamare Makgaba was “victimised”, without asking for his comment on this matter;
• reporting the DA’s accusation of overpaying Marumo Fase Security Services R3 million for services rendered, while the company was initially appointed on a R7 million budget without asking him for comment on this issue (while the company was appointed for a three year period at a cost of R10 579 161.98); and
• stating as fact that he failed to explain how the contractor could tar the first phase of the project if they were not contracted by the municipality.

The newspaper is reprimanded for not stating that it could not get comment from Nkoana prior to publication.

The newspaper is directed to publish the following text on page 3:

Capricorn Voice apologises to Molemole’s suspended municipal manager, Mr David Nkoana, for publishing the allegation that he “victimised” Ms Mamare Makgaba without asking for his comment on this matter.

We also apologise for:

• reporting the DA’s accusation of Nkoana overpaying Marumo Fase Security Services R3 million, “while the company was initially appointed on a R7 million budget” without asking him for comment on this issue (the company was in fact appointed for a three year period at a cost of R10 579 161.98); and
• the statement that he failed to explain how the contractor could tar the first phase of the project if it was not contracted by the municipality.

Nkoana lodged a complaint with the Press Ombudsman about a page 3 story that we published on 17 – 19 April 2013, headlined Council suspends muni manager.

The story, written by Stephen Mbedzi, said that the Molemole Municipality council had suspended Nkoana. It also stated: “Matters leading up to the council’s resolution to suspend Nkoana include allegations of financial mismanagement involving multi-million tenders, security and road projects and the failure to comply with the Municipal Finance Management Act.”

The matter was heard in Johannesburg on 20 June by a panel consisting of two members of the Panel of Adjudicators (Fanie Groenewald, press representative, and Philip van der Merwe, public representative) as well as the Press Ombudsman, Johan Retief.

The panel said that it believed that our reporting has caused Nkoana “some serious, unnecessary harm”. It added: “However, we also expressed our conviction (at the hearing) that Mbedzi was not politically influenced – accepting that the breaches of the Code as outlined above were not done with malicious intent or with some ulterior motive.”

The panel also reprimanded us for neglecting to state that it had failed to obtain comment from Nkoane for comment on various other matters of importance.

It dismissed the complaint about the statement that the Madikana Matipane contractor was appointed at R11 million, but that Nkoana later requested the council to add an additional R2 million – because we did record Nkoana’s rejection of this allegation.

Visit www.presscouncil.org.za for the full finding.

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Appeal

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman